Anters v Oakbridge Lawyers Pty Ltd

[2021] FCCA 2206

FEDERAL CIRCUIT COURT OF AUSTRALIA

Anters v Oakbridge Lawyers Pty Ltd [2021] FCCA 2206

File number(s):

ADG 17 of 2021

Judgment of:

JUDGE VASTA

Date of judgment:

20 July 2021

Catchwords:

HUMAN RIGHTS – Racial discrimination –application filed out of time – extension of time – consideration of reason for late filing – consideration of prejudice to respondent – consideration of merits  

Legislation:

Australian Human Rights Commission Act 1986 (Cth): s 46PH(2)

Federal Circuit Court Rules 2001 (Cth): 16.05

Racial Discrimination Act 1975 (Cth): s 9

Number of paragraphs:

59

Date of last submission/s:

20 July 2021

Date of hearing:

20 July 2021

Place:

Brisbane

Counsel for the Applicant:

The Applicant appearing on his own behalf

Counsel for the Respondent:

Mr Evans

Solicitor for the Respondent:

Oakbridge Lawyers Pty Ltd

ORDERS

ADG 17 of 2021

BETWEEN:

DAWN ANTERS

Applicant

AND:

OAKBRIDGE LAWYERS PTY LTD

Respondent

ORDER MADE BY:	JUDGE VASTA
DATE OF ORDER:	20 JULY 2021

THE COURT ORDERS:

1.That all outstanding applications be dismissed.

2.There be no order for costs.

REASONS FOR JUDGMENT
(Ex Tempore)

JUDGE VASTA

1. This is an application by the Applicant, Dawn Anters, for an extension of time in which to file an application alleging racial discrimination by the Respondents. 

2. The background to the matter is this:  the respondents, Oakbridge Lawyers, are a self-described mid-tier Adelaide law firm.  They have 10 staff members who work in the Adelaide office.  They do have a Melbourne office with two staff members.  They have a Brisbane office with two staff members.  They have a Perth office with one staff member, and they have a serviced office in Sydney.

3. On 14 October 2019, the managing director, and most experienced solicitor in the Adelaide office, Mr James Devonish, caused an advertisement to be made on the online website, SEEK, for a law graduate/lawyer to work in the Adelaide office.  In response to the advertisement, there were a large number of résumés or CVs and covering letters that were sent to the firm via email or uploaded to SEEK.  There were about 40 applications made.

4. After going through a, as it were, draft selection process, seven candidates were chosen for an interview, based on their CVs and applications.  One of those was the Applicant.  The interviews were conducted in the week beginning 28 October 2019.  The Applicant was scheduled to have his interview at 11.30 am on 28 October 2019.

5. There is evidence that the Applicant’s CV detailed, as part of the experience of the Applicant, that he had worked in a number of other Australian cities, mainly Darwin and Melbourne, as well as Adelaide.  What is notable about the Applicant’s CV was that it revealed that he was admitted to the Supreme Court of Victoria in August 2019, approximately two months before this interview.  He had completed a Master of Legal Practice (Litigation) at ANU, which is based in Canberra. 

6. Those two events, that is, the admission to the Supreme Court of Victoria and the completion of the Master of Legal Practice at ANU, occurred after the most recent work experience in the CV, that being working in Adelaide at the Attorney-General’s Department which had concluded in April 2019.

7. The Applicant arrived, according to Mr Devonish, about 15 minutes late for his interview.  He arrived wearing motorcycle boots, an open-neck short-sleeved shirt, no tie and no jacket.  As the Applicant has explained, he needed to ride his motorcycle to the interview and he would not have made it in time if he had used public transport. The Applicant remarked that he was surprised when he first looked in at the office of the Respondents because, even though they were a suburban law firm, they were dressed in full business attire.

8. The Applicant said that he apologised for his dress when he attended the interview.  The Applicant said that ,during the interview, the offsider to Mr Devonish, the Senior Associate Mr Bastiani, asked him questions to the following effect:

   (1)why and how did the Applicant come to Adelaide;  and

   (2)where was his family based?

9. The Applicant said that he answered those questions to the effect that he was born and raised in India, he at first came to Melbourne as an international student and that his family is based in India.  The Applicant said that, at the end of the interview, he asked about the salary and Mr Devonish, replied, in a discouraging tone, that, “The salary is 50K”.  The interview then concluded.

10. On the next day, 29 October 2019 at 7.03 pm, the Applicant sent an email to Mr Devonish.  This is one day after the interview.  The email read as follows:

    Hello James.  Thank you for taking the time to talk to me yesterday.  Thanks for Eddie’s [Mr Bastiani’s ] time, too.  And I appreciate Mira’s effort to coordinate the interview.  I enjoyed the conversation, and I think I learned something new.  I thought I’d touch base with you to let you know that from what I heard yesterday, I like the role and especially the location.  The only concern I have is its salary which, to me, seems a lot lower than what I was expecting for these kind of roles.  I understand and appreciate that you have over 20 years of experience and are in a better position than me to make the right decision.  So I would rather trust you on this matter than I trust myself.

    Accordingly, if you see me fit for Oakbridge and think that it is appropriate in light of my qualifications and transferable skills, you may reconsider the offer.  I am open to discuss this further.  To substantiate my claim in my résumé and the interview, I’ve attached my admission certificate and academic transcripts.  If you need further information or would like me to complete any sample work, please let me know.  Thanking you in advance, and I will wait to hear from you.  Kind regards…

11. The decision was made that two other candidates would be employed. 

12. On the Friday, 1 November, Mr Devonish phoned the Applicant to inform him that he had been unsuccessful for the position.  He did the same for all other unsuccessful candidates as well.  At no stage during that conversation was there any complaint made at all about the process.

13. On 28 February 2020, which is about four months later, Mr Devonish received a call on his direct office line from the Applicant.  The Applicant and Mr Devonish had a conversation to this effect:  the Applicant asked Mr Devonish whether he could send him an email to his direct email address.  Mr Devonish said that that was fine, but Mr Devonish asked what the purpose of the email was.  The Applicant said, “I have been racially discriminated against and want to send you an email about it,” and Mr Devonish replied, “You can send any email you want, but there’s no basis for the allegation.  I’m terminating the phone call”.  The Applicant said he would like to discuss the matter and Mr Devonish said that he would not, and he terminated the phone call.  The Applicant then sent an email.

14. The matter then graduated to a complaint made to the Human Rights Commission on 6 March 2020. The Human Rights Commission could not resolve the complaint and issued a certificate. The certificate was dated 1 July 2020. It was issued under s 46PH(2) of the Australian Human Rights Commission Act 1986 (Cth) (“the AHRC Act”).

15. What this meant was this; that because the complaint had been terminated by the President under that paragraph, and the President had given a notice to the Applicant in relation to the termination, the Applicant could make an application to this Court alleging unlawful discrimination by the Respondents. But that that application had to be made within 60 days after the issue of the notice, or within such further time as the Court concerned allowed, and that the complaint had to be the same as, or the same in substance, as the unlawful discrimination that was the subject of the terminated complaint.

16. The Applicant filed an originating application in this Court on 20 August 2020, which was within the 60-day limit.  That matter was given a file number of ADG286/2020.  The Court, in giving it that number, also gave it a first court date of 7 October 2020, 9.30 am, at court number 6, level 1 at the Roma Mitchell Commonwealth Law Courts building in Angas Street, Adelaide.

17. The application was for the following orders:

    OPTION A

    Oakbridge Lawyers make an offer of employment and pay him a sum of $10,000 to the Applicant.

    OR

    OPTION B

    Oakbridge Lawyers to pay the following to the Applicant:

    1.A sum of $1000 for a) injury to feelings, b) the humiliation, and c) insult, caused to the Applicant due to its conduct.

    2.A year’s a) salary and b)superannuation towards wages that the Applicant would have earned had the Applicant been selected and started to work in November 2019; it has to be calculated in line with a minimum salary of $60,000 per annum.

    So, the amount will be a follows:

    a)   Lost wages= 60,000 (of which $7755 to be paid to the Department of Human Services);

    b)   Lost superannuation (9%) =5400; and

    c)   The interest.

    3.A sum of $2500 towards the predicted future loss; that is, the potential career growth and the increase in salary had the applicant started his career a year earlier.

    That is a total of $68,900 + Interest.

18. The discrimination complained of was a racial discrimination. Racial discrimination pursuant to s 9 of the Racial Discrimination Act 1975 (Cth) (“the RD Act”) is unlawful. Subsection 9(1) says that:

    (1)It is unlawful for a person to do any act involving a distinction, exclusion, restriction or preference based on race, colour, descent or national or ethnic origin which has the purpose or effect of nullifying or impairing the recognition, enjoyment or exercise, on an equal footing, of any human right or fundamental freedom in the political, economic, social, cultural or any other field of public life.

19. Section 15 of the RD Act says that:

    (1) It is unlawful for an employer or a person acting or purporting to act on behalf of an employer:

    (a) to refuse or fail to employ a second person on work of any description which is available and for which that second person is qualified;

    ….

    by reason of the race, colour or national or ethnic origin of that second person or of any relative or associate of that second person.

20. In the originating application, pursuant to that section of the AHRC Act, the Applicant appended the complaint made to the AHRC dated 6 March 2020 and was, by doing that, ensuring that his application to this Court was the same as the allegation that he was making to the Human Rights Commission.

21. In that originating application, he said that he was born and raised in India; his skin colour, according to the Fitzpatrick scale, is type 4 (moderate brown); and, that he has a distinct accent.

22. He said that after completing his first undergraduate degree from India, he moved to Australia and he has completed a Bachelor of Commerce, a Bachelor of Arts, Bachelor of Laws, Bachelor of Psychological Science and, more recently, a Master of Legal Practice specialising in litigation.  He said that he was able to achieve the last qualification with a distinction.

23. In his claim, he said that he applied for the position; he didn’t include his Indian qualification in the application, he does not have a typical Indian name and, therefore, it was impossible to identify his racial or ethnic background from the application.  During the interview, he said that Mr Bastiani interviewed him and, as I have previously said, asked questions as to the following effect:

    ·why and how did the Applicant come to Adelaide;  and

    ·where was the Applicant’s family based?

24. The Applicant said that he answered those questions by these statements:

    ·that he was born and raised in India;

    ·he, at first, came to Melbourne as an international student;  and

    ·that his family was based in India.

25. He said that at the end of the interview when he asked about the salary, that he was told that the salary was 50K.  He said that the Respondent didn’t offer the position to him.  Instead, it selected two other candidates, namely, Henry Lu and Clare Venema, for the advertised position.  He said that compared to his qualifications and experiences “These candidates, as their profile stands on the professional networking platform LinkedIn, are both underqualified and under-experienced for the position advertised”.

26. As such, he said that he felt humiliated and embarrassed and, based on his experience, he makes the following allegations against the Respondent:

    ·That the Respondent had the intention to pay, as advertised, a competitive salary when it called him for the interview. 

    ·However, after realising that he was of Indian descent, it decided not to employ him but told him that the salary was $50,000:

    ·The Respondent “would have selected me for the position and offered me a salary of at least $60,000 had I not been from Indian descent”.

27. As I have previously noted, the originating application was given the file number and a first court date. 

28. The Respondent was not served with this application.  The Respondent, through more luck than management, had it brought to their attention that they were the Respondent in a matter that was before the Federal Circuit Court. Having had their attention brought to the existence of this application, the Respondent was able to go to the portal and see that the originating application had been filed, stamped and given the first court date.

29. The matter came before His Honour Judge Brown in Adelaide on 7 October.  The Respondents briefed Mr Evans of Counsel to appear at that first court date.  The Applicant did not attend.  Not surprisingly, his Honour dismissed the application.

30. The Applicant said that he was not aware of the first hearing date and had no communication either from the Court or from the Respondent of the dismissal of the first proceeding.  He said he contacted the registry in Adelaide on 29 January 2021 to inquire about the delay.  He said that the person to whom he spoke, informed him of the dismissal of the first proceeding.  He said that he asked that person, “How would that be possible without notifying me?”  That person replied to the Applicant that the Applicant was notified of the hearing date and guided him to check his emails of 20 August 2020.

31. The Applicant did not find that notification from the Court in his inbox.  The person from the registry, quite sensibly, asked the Applicant to look into his junk folder or spam folder.  The Applicant did look there and found the notification informing him of the first hearing date in the first proceeding. 

32. The Applicant said that, upon becoming aware of the dismissal on 29 January 2021, he then made a second application to the Court, which is this matter ADG17 of 2021.  He said that he lodged the application that same day, Friday, 29 January, but the Court accepted it on Monday, 1 February 2021.

33. In his affidavit, the Applicant said this at paragraph 23:

    My 19 August 2020 application to this court was my very first application to a court of law.  More importantly, it was the very first time I used the court’s eLodgement portal.  I had no knowledge of, or expectation as to, how long it would take to receive the first hearing date from this court.  This lack of knowledge was exacerbated by the information, whether or not it was correct, I had heard.  During the proceeding of the AHRC, I heard that COVID-19 caused to increase the Federal Court’s caseload.  Furthermore, when I was a young boy, I came to know my grandmother, who had been in a property dispute, had lodged a claim in a court in the State of Kerala in India where, compared to other states, procedures are faster and efficient, and she waited years to get the first hearing date.

    This information, in combination, had an influence on my perception as to how long it would take to get the first hearing date in this court.  Notably, however, I actively promptly acted throughout this proceeding, including initiating communications with the respondent before lodging the complaint with the AHRC and promptly participating in all procedures, except in the first hearing of the first proceeding.  It was not my intention to delay the process or waste resources of either the court or the respondent.

34. The Applicant went on at paragraph 25:

    In August 2019, I have been admitted as an Australian lawyer of the Supreme Court of Victoria.  Later in January 2021, I have also been admitted as a solicitor and barrister of the Supreme Court of South Australia.  I have completed a Master of Legal Practice and am currently undertaking a Master’s program in law.  However, I never worked as a solicitor and never held a practising certificate.  More importantly, as I have noted above, the application I made to this court on 19 August 2020 was my first application to a court of law and it was the very first time I used the court’s eLodgement portal.

    Furthermore, pursuant to rule 11 of the Legal Practitioners Education and Admission Council Rules 2018, a newly admitted solicitor can only obtain a restricted practising certificate and work under the supervision of a senior practitioner for the first two years.

35. In his submissions to the Court, he said at paragraph 6:

    Although the applicant is a self-represented litigant in this case, as a newly admitted inexperienced solicitor, the care he ought to have taken is higher than that of a layperson who does not have the advantage of the knowledge.  However, that duty is certainly not as high as the one that applies to an experienced solicitor.  The non-appearance in the first hearing and the consequent delay was purely unfortunate and caused partially due to his impeded perception which was, alas, beyond his control.  Notwithstanding that, though, he actively prompted acted in this proceeding, which justifies procedural fairness and the opportunity to be heard.

36. The problem for the Applicant is this: that there was no right to be heard on this application before me, ADG17/2021, without leave of the court being given pursuant to s 46PH(2) of the AHRC Act. The Applicant was alive to this and, on 1 June 2021, filed an application in a case. He sought three orders:

    1.That pursuant to Rule 16.05(2)(a) of the Federal Circuit Court Rules 2001 (Cth) the Court’s orders of 07 October 2020 made in the absence of the Applicant in ADG286/2020 be set aside, thereby permitting the Applicant to proceed with his application.

    2.In the alternative, pursuant to section 46PO(2) of the Australian Human Rights Commission Act 1986 (Cth), grant extension of time for the Applicant to initiate a proceeding against the Respondent pursuant to section 46PO of the Act.

    3.That the Court make any other orders the Court considers appropriate for the Applicant to proceed with his application against the Respondent.

37. The application, pursuant to r.16.05, could not have been made in this new application of ADG17/2021.  It had to be made in the application ADG286/2020.  The Applicant did not do that.  Considering that that file had been finalised on 7 October 2020 and the Applicant was only making an application on 1 June and in relation to a totally different file, it seems to me that the order that is sought is incompetent in this file and, therefore, the Court cannot consider it. 

38. In the end, the Applicant conceded that fact to me at the beginning of this hearing.  Therefore, this hearing has proceeded, as I said at the start of my reasons, as an application to grant an extension of time.

39. There are three matters that the Court looks at as to whether an extension of time should be granted, and it is not simply whether any one of the three could sustain an extension of time but whether, in combination with each other, those three matters militate towards the grant of the extension of time.  Those matters are, firstly, the reason for the delay; secondly, the prejudice, if any, to the respondent; and, thirdly, are the merits of the substantive claim sufficient to enable a Court to be satisfied that it is a matter that ought be heard?

1. In regards to that third matter, it is not necessary for the Applicant to show that he has a high or probable chance of success in the matter. It is a standard that is lower than that:  whether the merits deserve a full hearing and consideration by the Court, regardless of whether or not it may ultimately be successful.

2. Turning to the first matter, as I have pointed out during the recitation of the background facts, the Applicant has filed this application well and truly outside the 60 days.  The notice of termination is dated 1 July 2020.  On my calculations, that meant that the Applicant had to file an application by 29 August.  He did file ADG17/2021 on 19 August, some 10 days within the time limit, but this application was filed on 29 January 2021, which is some five months out of time.

3. The explanation that the Applicant gave to the Court in his material was supplemented by oral submissions.  The Applicant, first, said to me that he did not know of the first court date of that first application that was made within time.  He did not know that the application had been dismissed. He said he found out on 29 January 2021 and made this present application immediately upon becoming aware of the dismissal of ADG286/2020.  He said that he was not given an opportunity to be heard on the first hearing, and it would be unfair if he was not given an opportunity to be heard.

4. As I pointed out to the Applicant, he was given an opportunity to be heard.  The Court operates in such a way that a person, no matter whether they be rich or poor, black or white, sick or healthy, represented or unrepresented, has a right to make an application to this Court and they are all treated exactly the same.  That is, they file their application.  If it is in order, then the Court stamps it, and the Applicant is given an email which contains the stamped copy of the application with the first court date.  It is then the Applicant’s duty to serve that material upon the Respondent to the application.  As I say, there is no magic to any of that.

5. That is what the Court’s obligation is, and the Court did fulfil its obligation.  The Applicant attempted to say to me that he was expecting a phone call or that he would get the notice in the post or that the associate would contact him or that he would get some sort of special email, and because of that, he simply just did not check his spam folder.  That may be why it is that the Applicant did not know of the court date, but it is hardly something that could be called unfair.  The Court treated the Applicant as it would any other Applicant.

6. The Applicant says to the Court that this was the first time he had used the eLodgement portal and that while he may have been admitted as a legal practitioner, but he had no actual experience.  He may have had a Master’s of Legal Practice (Litigation) but, in effect, he knew nothing of litigation.  As I pointed out to him, he could not blame anyone but himself for this. I know I am being harsh in saying this but it is the incompetence of the Applicant that caused him not to know the first court date.

7. The Applicant concedes that he was less careful than he should have been.  That, quite frankly, is an understatement.  The excuse for why he did not check until 29 January 2021 is not an excuse that makes any sense at all.  It really says volumes that the Respondent, who was not even served with this application, turned up on 7 October 2020 and the Applicant did not.

8. With regard to the prejudice to be suffered by the Respondent, it is clear that this has been a matter that the Respondent has been quite sensitive about.  The Applicant did not contact the Respondent until four months after the Respondent had appointed those two persons to the position.  The Respondent had, in effect, gone about its business as it would normally do, and then, without any warning that there was any problem with the selection process, was simply contacted by the Applicant where racial discrimination was alleged.

9. In the two communications within a week or, more properly, within four days of the interview, the Applicant, in writing to the Respondent, did not raise any issue of racial discrimination.  And then when the Applicant was telephoned to be told that he was unsuccessful in his application, he did not raise any issues at that time either.

10. The Respondent is a mid-tier firm in Adelaide, but one must take account of the fact that the legal profession is not a large legal profession in Adelaide, and it would be well known around the legal profession what the specialities of the Respondent is within the legal fraternity.  For there to be a question mark over the two senior practitioners of that firm regarding racism displayed by them is a matter that would be quite deleterious to them.

11. Having regard to the order of Judge Brown on 7 October, the Respondents were entitled to believe the matter was now at an end.  For the matter to then be resurrected on 29 January, or 1 February, means they have had to go through this allegation again and be living with it, where it has the potential to affect their business and livelihood.

12. The Applicant counters this by saying that he has been the one who has been discriminated against and the unfairness that would be afforded to him, if the extension of time were not allowed, is far greater than any unfairness that is being suffered by the Respondents.  The Applicant points to the fact that he has tried to settle this matter well before it went to a hearing before the Australian Human Rights Commission and the Respondents did not wish to engage in settling the matter. The Applicant submits that the Respondents were not acting in good faith and so, therefore, this criteria of prejudice to the Respondent is a matter that would not cause the Court too much trouble.

13. As to the merits of the matter, it seems to me that the Applicant, notwithstanding that he tried to expand his case orally, is stuck with the merits of the matter that he has put in his application; that is, that the questions that were asked by Mr Bastiani meant that the Applicant had to disclose his Indian heritage and that his family was based in India.  That, combined with his skin colour/his accent, left him with a very great impression that he was being discriminated against; that is, that if he were not Indian, or of Indian descent, not only would he have gotten the job but he would have been paid $10,000 more than what the Applicants were prepared to pay as a $50,000 salary.

14. The Applicant then says to the Court that the proof that there was discrimination can be easily seen in the persons whom the Respondent eventually employed; that is, persons who were less qualified than he was.  To my mind, this is a very difficult allegation to ever prove.  When one considers that the Applicant himself raised no issue with the questions either in the email or in the post-interview phone call and, in fact, said that he felt very comfortable and enjoyed the interview experience, it puts into great question his statement that the questions asked by Mr Bastiani made him uncomfortable and that it forced him to divulge information that he did not need to divulge.

15. Furthermore, when one looks at the CVs of the two successful candidates, it is difficult to see why it is that the Applicant believes that he is so much better qualified than either of these persons.  Again, one must realise that the CVs are not the matters upon which the Respondents were employing the persons.  The CVs were only the first step.  The interviews themselves were the most decisive factor in whom was employed. 

16. The Applicant could never be able to prove that, on interview, he did perform better than the two successful candidates.  But to my mind, one of the most telling factors here is that one of the successful candidates, Mr Henry Lu, has a Chinese background and has a non-Anglo-Celtic appearance.

17. So when I add up the merits of the application, the prejudice to the Respondents and the totally unsatisfactory explanation as to why this application was made so late, I have come to the conclusion that I cannot, and should not, in the exercise of my discretion, extend the time for filing. 

18. I, therefore, dismiss the application.

19. The matter of costs is a matter for me.  However, counsel for the Respondents has noted that the Applicant is, in effect, impecunious and a costs order would be an order for which the Respondents would have very little hope of ever realising. 

20. For that reason, I decline to make any costs order in this matter.

I certify that the preceding fifty-nine (59) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Vasta.

Dated:       17 May 2022